Other Conduct of Research Issues

11.3 Export Control & Trade Regulations/Restrictions

Primarily the Department of Commerce through the Export Administration Amendments Act and the Arms Export Control Act governs the exportation or dissemination of technical data and research results or
inventions. The Department of State and the Department of Defense, among others, play
a role in enforcing regulations that apply not just to exports of goods overseas,
but also to "deemed exports," which are disclosures of controlled technology and data
to foreign nationals in the United States. These deemed export provisions are of special
interest to universities because they conduct research and teach courses that may
involve controlled technology and they enroll and employ foreign nationals.

Most University activities are exempt from export control regulations because the
information involved is publicly available or in the public domain, is considered
fundamental research. These conditions generally correspond to blanket regulatory
exemptions.

The University may, at the determination of OSP, accept research agreements that indicate
that technical data generated under an agreement may be subject to export control
regulations and that include the requirement that foreign nationals be identified
to the sponsor prior to the foreign national's involvement in the project. If the
sponsor exercises further restrictions on the publication of these data or on the
access to the research by foreign nationals, the University may elect to decline or
terminate the agreement if these restrictions are deemed unreasonable under the circumstances.
Any project that indicates that its research results will be subject to export control
or that requires sponsor prior approval in connection with the hiring of foreign nationals
will be evaluated on a case-by-case basis through appropriate University process.

11.3.1 Regulations

There are three primary sets of federal regulations that govern export controls:

The Export Administration Regulations (EAR), administered by the Commerce Department, apply to the export of "dual-use" items
and their technology (i.e., items that have both commercial and military applications,
such as computers or pathogens).

The International Traffic in Arms Regulations (ITAR), administered by the State Department, apply to munitions, or defense articles and
defense services (i.e., those articles and services that are specifically designed
for military applications or defense and do not have predominant civil applications).

These regulations apply to exports in virtually all fields of science, technology
and engineering. Generally, an "export" includes any: (1) actual shipment, or electronic
or digital transmission, of covered items or technology; (2) release or disclosure,
including verbally, of covered technology, software or equipment to a foreign national
anywhere; or (3) use or application of covered technology for the benefit of a foreign
entity or person anywhere.

Since 1994, "export" means not only the shipment of items or transmission of technology
outside the United States, but also transmissions to a non-U.S. citizen, non-permanent
resident within the United States (called a "deemed export"). Thus, a disclosure to
a foreign researcher or student on the University campus is a "deemed export".

Unless an exemption applies, EAR and ITAR may require that a license be obtained before
covered equipment, materials, technology, software or information can be exported
out of the U.S. or within it as a deemed export. The vast majority of exports associated
with academic research – including deemed exports – do not require government export
licenses because an exemption applies. In other situations, however, a license may
be required. In a few situations, a license may be denied.

11.3.2 Exemptions

Most research at the University is exempt from EAR and ITAR under one of three key
exclusions:

The research involves "fundamental research" (so long as there are no restrictions
on publication of the research or other restrictions on the dissemination of the information);

The research involves information that is "publicly available" (EAR) or that is in
the "public domain" (ITAR); or

The research involves "educational information" (i.e., information released by instruction
in catalog courses and associated teaching laboratories at academic institutions in
the U.S., other than for certain encrypted software).

11.3.3 Fundamental Research

University-based research conducted by scientists, engineers, or students normally
will be considered fundamental research.

The EAR and ITAR define "fundamental research" as basic and applied research in science
and engineering conducted at a University located in the U.S. where the resulting
information is ordinarily published and shared broadly within the scientific community
(excluding certain encryption software). Thus, the fundamental research exemption
applies to research conducted by foreign nationals at U.S. campuses, but does not
apply to research conducted abroad.

University-based research is not considered "fundamental", and a license may be required
if:

specific access or dissemination controls on the resulting information have been accepted
by the University or the researcher; or

the University or researcher accepts "pass through" or "flow through" export control
requirements from a sponsor or restrictions on publication of the information resulting
from the research, other than (i) prepublication review to ensure that publication
would not inadvertently divulge proprietary information furnished by the sponsor or
(ii) prepublication review designed solely to ensure that publication would not compromise
patent rights.

11.3.4 Licenses

If the exemptions for publicly available/public domain information and fundamental
research do not apply, and information or equipment is to be exported to foreign nationals
in the U.S. or transferred abroad, then EAR or ITAR may apply, and a license may be
required.

Under federal law (in particular the Export Administration Amendments Act and the
Arms Export Control Act) either the Department of Commerce or the Department of State
must authorize the export of certain goods and technology through the issuance of
an export license. For the purpose of these Acts and their implementing regulations
(EAR and ITAR) the export of technical data includes the communication by any means
to foreign nationals or their agents, whether this communication takes place in the
United States or elsewhere.

Section 779.3 of the US Department of Commerce Export Administration "General License
GTDA; Technical Data Available to All Destinations" defines that information which
may be distributed without special license from the Department of Commerce. The GTDA
license does not authorize the initial transfer of information from an industry sponsor
to university researchers where the parties have agreed that the sponsor may restrict
from publication some or all of the information so provided. Scientific and technical
information resulting from proprietary research will become publishable under the
general license (GTDA)once restrictions on publication and disclosure have expired
or have been removed.

A general license (designated a GTDA) authorizes the export to all destinations of
such technical data as:

Information arising during or resulting from fundamental research.

Data released orally or visually at open conferences, lectures, trade shows, or other
media open to the public.

Publications that may be purchased without restrictions at a nominal cost or are readily
available at public libraries.

Patents available at any patent office.

Dissemination of scientific or educational information not directly and significantly
related to the design, production, or utilization in industrial processes.

Instruction of scientific or educational data in academic institutions and academic
laboratories, excluding information that involves research under contract related
directly and significantly to design, production, or utilization in industrial processes.

A GTDR general license applies to export of technical data other than that described
above. These exports are under export restriction, with various export standards applied
to designated country groups (e.g., Russia, China, Afghanistan, etc.). All exports
of technical data in this restricted category require a validated license prior to
export.

Items subject to ITAR require a license from the Office of Munitions Control prior
to export unless they are "in the public domain" or fall within one of the exemptions.
The following exemption is particularly relevant to universities:

Disclosures of technical data in the U.S. by U.S. institutions of higher learning
to foreign persons who are their bona fide and full time regular employees. This exemption is available only if (i) the employee's permanent abode throughout the period of employment is in the
United States; (ii) the employee is not a national of a country to which exports are
prohibited pursuant to sec. 126.1; and (iii) the institution informs the individual
in writing that the technical data may not be transferred to other foreign persons
without the prior written approval of the Office of Munitions Control;

Aside from exemptions and limited special consideration given to universities in the
EAR and ITAR, universities are not exempt from compliance with these regulations.
Penalties for noncompliance range from a reprimand to criminal penalties. Given the
breadth of the definitions of technical data, it would be very difficult to formulate
a university policy that explicitly restricts the pursuit of research requiring an
export license without seriously damaging academic freedom. All projects must, therefore,
be reviewed on a case by case basis to determine whether export regulations are an
issue for that particular project.

11.3.5 Restrictions on Access by Foreign Nationals

The basic provisions regarding the involvement of foreign nationals in research activities
that may be subject to export control is found in section 52.215-9530 of the Federal
Acquisition Regulations (FAR) which states:

The parties acknowledge that technical data generated under this contract may be subject
to export control, including disclosure to foreign nationals/representatives, whether
such data is provided orally or in written form. The contractor agrees to obtain written
approval from the Contracting Office (PCO) before assigning any foreign national/representative
to perform work under the contract or before granting foreign nationals or their representatives
access to data related to the following items/subject matter, whether such data is
provided by the Government or generated under this contract.

The foreign national clause has two parts: (1) an "advisory warning" that the research
may involve technical data which may be subject to export control regulations; and
(2) the responsibility of the contractor to obtain permission from the contracting
officer before assigning any foreign national to work on the project or to have access
to certain data. This clause alerts the contractor to its duty to protect information
subject to current export laws and regulations. It also gives the contracting officer
the opportunity to object if the contractor constructively exports militarily critical
technology by providing such data to foreign nationals. The federal government, not
a particular contractor, determines generally what data are sensitive and require
protection from unauthorized export. However, the exporter must make an individual
determination of whether a particular export involves such data and thereby requires
an export license.

11.3.6 EAR & ITAR Definitions of Technical Data

11.3.6.1 Export Control Regulations

The Export Administration Regulations (EAR) define technical data as:

Information of any kind that can be used, or adapted for use, in the design, production,
manufacture, utilization, or reconstruction of articles or materials. The data may
take a tangible form, such as a model, prototype, blueprint, or an operating manual;
or they

May take an intangible form such as technical services.

Technical data, which are governed by the act, may not be "exported" without first
securing a license from the Department of Commerce. The export of technical data includes:
(a) an actual shipment or transmission of data out of the United States; (b) release
of technical data in the United States with the knowledge or intent that the data
will be shipped or transmitted to a foreign country; and (c) any release of technical
data of U.S-origin in a foreign country. The release of technical data is further
defined to include "oral exchanges of information in the United States or abroad."
(15 C.F.R. sec. 379.1[b]).

These regulations make a distinction between fundamental research--defined as "basic
and applied research in science and engineering, where the resulting information is
ordinarily published and shared broadly within the scientific community" and proprietary
research, the results of which ordinarily are restricted for proprietary reasons or
specific national security reasons.

11.3.6.2 International Traffic in Arms Regulations

The definition of technical data in the International Traffic in Arms Regulations
(ITAR) includes:

ITAR deals with items with inherent capabilities which are "deemed to be inherently
military in character." Items that have a dual use--that is, civilian as well as military
applications (are governed under EAR. The definition explicitly excludes "information
concerning general scientific, mathematical or engineering principles."